Unit 6: Immunity and Act of State in National Courts

This Unit explores the erosion of the doctrine of absolute state immunity in a foreign office context: allowing adjudication against foreign states in state courts. The first part of the unit focuses on American jurisprudence which exemplifies both a rather elaborated and an innovative approach in the context of immunity of states. The unit explores critically the exceptions to immunity of states – most prominently to allow commercial transactions and to fight terrorism – and the challenges these exceptions face in the context of conferring jurisdiction and enforcement. The discussion of the erosion of the foreign office model of states’ immunity is then critically analyzed in the world of global governance: the eroding immunity of international organizations.

Reading Guide

I. Overview and Introduction

A. Overview and Background: Hazel Fox, Chapter 12 (in Evans, ed.)

B.  The Development of Sovereign Immunity Law in the United States

1. A Historical Introduction

a. The Classical View
b. The Tate Letter
c. The Tate Letter in Practice



II. The Foreign Sovereign Immunities Act of 1976

A. See FSIA [important to read*]

1. An Overview of the Act

a. Jurisdiction of the Federal Courts

b. Immunity and Exclusion from Jurisdiction

c. Commencement of Action

d. Enforcement of Judgments

e. Actions in State Courts

2. Notes and Questions

3. Princz v. Germany

4. Altmann v. Austria. Aftermath: an arbitration between Austria and Altmann determined the paintings belonged to her, and she sold them.

B. Commercial Activity Here and Abroad

1. Notes on Republic of Argentina v. Weltover

2. Nelson v. Saudi Arabia

C. The Terrorism Exception to the Foreign Sovereign Immunities Act

1. Libyan Payment to Families of Pan Am flight 103

2. Security Council Lifts Sanctions imposed on Libya

3. US Courts orders Libya to Pay  

****Additional Materials****

4. Jonathan B. Schwartz, Dealing with a “Rough State”: The Libya Precedent, 101 AJIL, 552 (2007).


III. Suing Current or Former Foreign State Officials in US Courts

V. The Act of State Doctrine

A. The Locus Classicus:

1. Banco Nacional de Cuba v. Sabbatino

2. Aftermath of Sabbatino

B. The Contemporary Approach of the Supreme Court:

1. Kirkpatrick v. Environmental Tectonics

C. Article on Kuwait Airways v. Iraq Airways


VI. Immunity of International Organizations

A. Chanaka Wickremasinghe, On Immunities of Diplomats, Government Officials, and Official of International Organizations (Ch. 13, in Evans, ed.).

B. Waite and Kennedy v. Germany, European Court of Human Rights, 26083/94.

C. Brzak v. United Nations, Judgment of US District Court, April 29, 2008 (an appeal has been filed);

    Brzak Brzak v. United Nations, Memorandum of Law of the United Nations, October 2, 2007

D. Letter from the United States District Attorney to the Court, October 2, 2007.